Vameshwar Prasad Singh vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973  with  a prayer  to quash  the entire criminal proceeding arising out of Giridih Nagar  P.S. Case No.37 of 2023 registered for the offence punishable under Sections 406, 420, 467, 468, 471 of the Indian Penal Code.

Learned counsel for the petitioners submits that the investigation of the case is still going on and charge-sheet has not yet been submitted in this case.

The allegation against the petitioners is that the petitioners entered into an agreement for sale with the informant, took an advance and thereafter also took some more money but subsequently they entered  into  an  agreement  with  other  persons  and  executed  power  of attorney in favour of them also.

Learned counsel for the petitioners submits that even if the entire allegations made against the petitioners are considered to be true in their entirety still none of the offences in respect of which the F.I.R. has been registered, is made out against either of the petitioners. It is further submitted that there is no allegation of any impersonation being committed  by  the  petitioners  in  execution  of  the  power  of  attorney  in favour of anyone and in the absence of the same, the question of forgery does not arise.

Learned  counsel  for  the  petitioners  relies  upon  the  judgment  of the  Hon’ble  Supreme  Court  of  India  in  the  case  of  Vinod  Natesan  vs. State of Kerala & Others reported in (2019) 2 SCC 401 and submits that therein it has been mentioned that as in the facts of that case when the dispute  between  the  parties  was  a civil  dispute  and  it  was  tried  to  be converted into a criminal dispute, therefore, the Hon’ble Supreme Court of India was of the view that the continuation of the criminal proceeding against the accused willbe an abuse of process of law.

Learned counsel for the petitioners next relies upon the judgment of  this  Court  in  the  case  of  Reena  Lata  @ Rina  Lata  vs.  The  State  of Jharkhand & Another reported in 2026:JHHC:1072 and submits that therein  this Court relied upon the judgment  of the Hon’ble Supreme Court of India in the case of Dalip Kaur & Others vs. Jagnar Singh & Another reported in (2009) 14 SCC 696, paragraph-10 of which reads as under:-

“10. The High Court, therefore, should have posed a  question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non- refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See  Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703] )”(emphasis supplied)

and submits that therein the Hon’ble Supreme Court of India has reiterated  the  settled principle  of  law  that  if  the  dispute  between  the parties is essentially a civil dispute resulting from the breach of contract on the part of the accused person by non-refunding the amount of advance, the same wouldnot constitute the offence of cheating.

It is next submitted that in that case, this Court also relied upon the judgment of the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Anr. reported in (2005) 10 SCC 336, paragraph-6 of which reads as under :-

“6. Xxxx xxxx xxxx It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there  was  any  intention  on  behalf  of  the  accused  persons  to  cheat which  is  a condition  precedent  for  an  offence  under  Section  420 IPC.” (Emphasis supplied)

wherein  the  Hon’ble  Supreme  Court  of  India  has  reiterated  the settled principle of law that in order to constitute the offence of cheating, the  accused  must  play  deception  since  the  beginning  of  the transaction between the parties and if the intention to cheat has developed later on, the same cannot amount to cheating.

Hence, it is submitted that the prayer, as prayed for in the instant Cr.M.P., be allowed.

Learned Addl. P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of  the petitioners made in the instant  Cr.M.P.  and submit that during the subsistence of the agreement to sale between the petitioners and the informant, the petitioners have sold the property to a third party by executing  power of  attorney  and thus, the power of attorney is a  forged one and they have also cheated the informant and they have not  even returned the advance money and the subsequent money taken by them. Hence, it is submitted that all the offences in respect of which the F.I.R. has been lodged, is made out against each of the petitioners, therefore, it is submitted that this Cr.M.P., being withoutany merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Radheyshyam & Others vs. State of Rajasthan & Another reported in 2024 SCC OnLine SC 2311

para-12 of which reads as under:-

“12. In the present case, the appellants were not entrusted with  any property  by respondent  no. 2 - complainant. The only delivery made was of part payment towards an Agreement to Sell between the parties. The amount paid towards consideration cannot be said to have been entrusted with the appellants by respondent no. 2.  Additionally,  merely  because  the  appellants  are refusing to register the sale, it does not amount to misappropriation of the advance payment. Since there was no entrustment of property, the offence of misappropriation of such property and thereby criminal breach of trust cannot be said to be made out.” (Emphasis supplied)

that the amount paid towards consideration cannot be said to have  been  entrusted  with  the  accused  person  by  the  complainant  and merely because the seller is refusing to register the sale, it does not amount to misappropriationof the advance amount paid.

In the case of Murari Lal Gupta vs. Gopi Singh reported in (2005) 13 SCC 699 paragraph-6 of which reads as under:-

“6. We have perused the pleadings of the parties, the complaint and the orders of the learned Magistrate and the Sessions  Judge.  Having  taken  into  consideration  all  the  material made available on record by the parties and after hearing the learned  counsel  for  the  parties,  we  are  satisfied  that  the  criminal proceedings  initiated  by  the  respondent  against  the  petitioner  are wholly  unwarranted.  The  complaint  is  an  abuse  of  the  process  of the  court  and  the  proceedings  are,  therefore,  liable  to  be  quashed. Even  if  all  the  averments  made  in  the  complaint  are  taken  to  be correct, yet the case for prosecution under Section 420 or Section 406  of  the  Penal  Code is  not made  out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 IPC is made out even  prima  facie.  The  complaint  filed  by  the  respondent  and  that too at Madhepura against the petitioner, who is a  resident of Delhi, seems  to  be  an  attempt  to  pressurise  the  petitioner  for  coming  to terms with the respondent.” (Emphasis supplied)

therein the Hon’ble Supreme Court of India has reiterated the settled  principle  of  law  that  merely  because  an  agreement  to  sell  was entered into and which agreement, the accused persons of the case failed to honour, it cannot be said that the seller has cheated the respondent  and no case for prosecution under Section 420 or Section 406 of the Indian Penal Code is made out.

Now, coming to the facts of the case; there is absolutely no allegation against either of the petitioners of playing deception since the beginning of the transaction between the parties rather it is the case of the petitioners that since the informant did not pay the entire consideration amount in terms of the agreement, hence, they executed a power of attorney to sell their land to a third party. In the absence of the essential  ingredient  to  constitute  the  offence  punishable  under  Section 420 of the Indian Penal Code, that the accused must have played deception since the beginning of the transaction between the parties, this  Court  is  of  the  considered  view  that  even  if  the  entire  allegations made  against  the  petitioners  are  considered  to  be  true  still  the  offence punishable under Section 420 of Indian Penal Code is not made out against the petitioners.

So far as the offence punishable under  Section 406 of the  Indian Penal Code is concerned, as has been held by the Hon’ble Supreme Court of India in the case of Radheyshyam & Others vs. State of Rajasthan & Another (supra) that the amount paid towards consideration  cannot  be  said  to  have  been  entrusted  with  the  accused person and in the absence of any allegation that the petitioners dishonestly misappropriated any entrusted property, this Court has no hesitation in holding that even if the entire allegations made against the petitioners are considered to be true still the offence punishable under Section 406 of Indian Penal Code is not made out against the petitioners.

So far as the offences punishable under Sections 467, 468 and 471 of the Indian Penal Code are concerned, the essential ingredients to commit each of such offence is forgery.

Now, coming to the facts of the case; the only ground of the informant claiming forgery to have been committed by the petitioners is that during the subsistence of the agreement for sale with the informant,  they  have  sold  the  property  to  a third  party;  through  their power of attorney holder. There is no allegation that the petitioners have created any false document as defined in Section 464 of the Indian Penal Code.

Under such circumstances, this Court has no hesitation in holding that even if  the entire allegations  made against  the petitioners are considered to be true in their entirety, still the offence of forgery is not  made out  against  the petitioners and  in the absence of the same, none  of  the  offence  punishable  under  Sections  467,  468  and  471  of  the Indian Penal Code is not made out against the petitioners.

In view of the discussions made above, as none of the offence in respect of which the F.I.R. has been registered, is made out against the petitioners even if the entire allegations made against them are considered to be true in their entirety, hence, this Court is of the considered view that the continuation of this criminal proceeding against the petitioners willamount to abuse of process of law, therefore, this is a fit case where the entire criminal proceeding arising out of Giridih Nagar P.S. Case No.37 of 2023, be quashed and set aside qua the petitioners named above.

Accordingly,the entire criminal proceeding arising out of Giridih Nagar P.S. Case No.37 of 2023, is quashed and set aside qua the petitioners named above.

In the result, this Criminal Miscellaneous Petition stands allowed.